State v. Paiz

• Decision Date: 17 February 2011
• Docket Number: No. 31,409.,31,409.
• Citation: 249 P.3d 1235,2011 -NMSC- 008,149 N.M. 412
• Parties: STATE of New Mexico, Plaintiff–Appellee,v.Victor PAIZ, Defendant–Appellant.
• Court: New Mexico Supreme Court

149 N.M. 412

249 P.3d 1235

2011 -NMSC- 008

STATE of New Mexico, Plaintiff–Appellee,

v.Victor PAIZ, Defendant–Appellant.

No. 31,409.

Supreme Court of New Mexico.

Feb. 17, 2011.

Thomas L. Wright, El Paso, TX, for Appellant.Gary K. King, Attorney General, Andrew S. Montgomery, Assistant Attorney General, Santa Fe, NM, for Appellee.

OPINION

MAES, Justice.

{1} In this appeal we address when improper joinder and a motion to sever are appropriate and whether improper joinder is subject to a harmless error analysis. Defendant, Victor Paiz, appeals his convictions for first degree murder, shooting at a motor vehicle causing great bodily harm, two counts of aggravated battery, two counts of aggravated assault, tampering with evidence, and drug trafficking by possession with the intent to distribute cocaine. Defendant claims that the State violated Rule 5–203(A) NMRA, when it joined the unrelated drug trafficking count with the counts related to the shooting. The State raises for the first time on appeal the question of whether the trial court had the authority to enhance Defendant's life sentence for first degree murder.

{2} We clarify the differences between a Rule 5–203(A) and Rule 5–203(C) claim at the trial level versus the appellate level. At the trial level the defendant only has to show that the offenses joined in the indictment, information, or complaint do not meet the criteria for joinder under Rule 5–203(A). The defendant need not show prejudice at the trial level. If the trial court finds that the defendant has made this showing, then the trial court should sever the improperly joined offenses. We adopt the analysis in State v. Gallegos, 2007–NMSC–007, ¶ 41, 141 N.M. 185, 152 P.3d 828, to determine whether Defendant was actually prejudiced by the improperly joined offenses under Rule 5–203(A). Accordingly, we hold that Rule 5–203(A) was violated when the drug trafficking count was joined with the counts related to the shooting, and that the improper joinder resulted in actual prejudice to Defendant, which was not a harmless error. We reverse Defendant's convictions and remand for a new trial. We also hold that the trial court lacked authority to increase Defendant's life sentence.

FACTS AND PROCEDURAL HISTORY

{3} Only those facts relevant to improper joinder are discussed here; other facts are discussed as needed. A confrontation between Defendant and his friends and Albert Mata and his friends resulted in a shooting where Jesse Bustillos was killed. Mata's three other friends were injured as a result of the shooting.

{4} As part of the investigation, a search warrant was executed at Defendant's residence. The officers were looking for a red striped shirt that Defendant allegedly wore at the shooting and any other evidence pertaining to the incident. In the living area, they located the red striped shirt and a tennis shoe box. Inside the box was a pair of sneakers, and inside the sneakers the officers found two plastic bags “containing a white powdery substance.” Later testing indicated that the white powdery substance in both bags was cocaine. One plastic bag contained 6.63 grams of cocaine, and the other contained 6.94 grams of cocaine. The officers also found a hand scale, a digital scale, and clear plastic bags.

{5} Defendant was charged with (1) first degree, deliberate murder, or in the alternative, felony murder, of Jesse Bustillos; (2) shooting at a motor vehicle causing great bodily harm to Jesse Bustillos; (3) aggravated battery with a deadly weapon on Benjamin Duenes; (4) aggravated battery with a deadly weapon on Aaron Gomez; (5) aggravated assault with a deadly weapon on Chris Baca; (6) aggravated assault with a deadly weapon on Albert Mata; (7) tampering with evidence relating to the gun; (8) tampering with evidence relating to the red striped shirt; and (9) drug trafficking by possession with intent to distribute cocaine.

{6} Before trial, Defendant filed a motion to sever the drug trafficking charge. His motion specifically cited Rule 5–203(A) and claimed that severance was based on the following grounds:

a. It [was] not of a similar character to the others;

b. The facts supporting it [did] not form part of a single scheme or plan involving the other charges;

c. The facts supporting it [did] not form part of the motive for the other charges;

d. The facts supporting it [did] not form part of the same conduct or series of acts as that supporting the other charges; [and]

e. Trial of Count 9 with the other charges would prejudice Defendant in his defense of the shooting-related charges; the jury might be led to base its decision on speculation, conjecture, prejudice, or emotion based on an appearance of drug trafficking.

{7} The State responded that the charges were properly joined because evidence of drug trafficking was discovered with evidence related to the shooting, judicial economy favored trying all charged counts together, and evidence for all of the counts would be cross-admissible if tried in separate trials and, therefore, Defendant would not be prejudiced. After a hearing on the motion to sever, the trial court issued an order summarily denying the motion. Defendant renewed his motion to sever at the start of trial, and the court again denied the motion. At the close of the State's case-in-chief, Defendant moved for a directed verdict on all charges. The trial court granted a directed verdict as to tampering with evidence relating to the red striped shirt but determined that there was sufficient evidence on the remaining eight charges to submit them to the jury. Defendant objected to the jury instructions on the drug trafficking charge citing his “previous objections relative to the entry of the evidence and the severance motion.” The jury convicted Defendant on the remaining eight charges. Defendant was sentenced to life in prison plus thirty-two years enhanced by one year pursuant to NMSA 1978, Section 31–18–17 (2003), followed by two years on parole.

{8} Defendant appeals pursuant to Rule 12–102(A)(1) NMRA and Article VI, Section 2 of the New Mexico Constitution, which provide for direct appeal from the trial court when a sentence of death or life imprisonment has been imposed. See State v. Trujillo, 2002–NMSC–005, ¶ 8, 131 N.M. 709, 42 P.3d 814.

{9} Defendant argues that the State violated Rule 5–203(A), joinder of offenses, when it joined the drug trafficking count with the counts related to the shooting incident. Defendant also argues that the trial court erred when it denied Defendant's motion to sever the drug trafficking count from the counts related to the shooting incident, because even if joinder of the charges was proper, he was prejudiced by their joinder pursuant to Rule 5–203(C).

STANDARD OF REVIEW

{10} Rule 5–203(A), joinder of offenses, is a mandatory rule. Gallegos, 2007–NMSC–007, ¶ 10, 141 N.M. 185, 152 P.3d 828 (“Rule 5–203(A) is not a discretionary or permissive rule; it demands that the State join certain charges.”). Thus, an improper joinder of offenses claim is a question of law, which we review de novo. Id. ¶ 17.

DISCUSSIONImproper Joinder and Denial of Motion to Sever

{11} Rule 5–203 addresses joinder of offenses, joinder of defendants, and motion for severance. In Gallegos, this Court acknowledged the confusion surrounding improper joinder claims and denial of motion to sever claims. 2007–NMSC–007, ¶ 17, 141 N.M. 185, 152 P.3d 828. In this opinion, in conjunction with Gallegos and State v. Garcia, 2011–NMSC–003, 149 N.M. 185, 246 P.3d 1057 (2011), we clarify Rule 5–203 claims. Rule 5–203 states:

A. Joinder of offenses. Two or more offenses shall be joined in one complaint, indictment or information with each offense stated in a separate count, if the offenses, whether felonies or misdemeanors or both:

(1) are of the same or similar character, even if not part of a single scheme or plan; or

(2) are based on the same conduct or on a series of acts either connected together or constituting parts of a single scheme or plan.

B. Joinder of defendants. A separate complaint, indictment or information shall be filed for each defendant. Two or more defendants may be joined on motion of a party, or will be joined by the filing of a statement of joinder by the state contemporaneously with the filing of the complaints, indictments or informations charging such defendants:

(1) when each of the defendants is charged with accountability for each offense included;

(2) when all of the defendants are charged with conspiracy and some of the defendants are also charged with one or more offenses alleged to be in furtherance of the conspiracy; or

(3) when, even if conspiracy is not charged and not all of the defendants are charged in each count, the several offenses charged:

(a) were part of a common scheme or plan; or

(b) were so closely connected in respect to time, place and occasion that it would be difficult to separate proof of one charge from proof of others.

C. Motion for severance. If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants by the filing of a statement of joinder for trial, the court may order separate trials of offenses, grant a severance of defendants, or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance, the court may order the prosecutor to deliver to the court for inspection in camera any statements or confessions made by the defendants which the prosecution intends to introduce in evidence at the trial.

{12} As we stated in Gallegos, “Rule 5–203(A) is not a discretionary or permissive rule; it demands that the State join certain charges.” 2007–NMSC–007, ¶ 10, 141 N.M. 185, 152 P.3d 828. Rule 5–203(A) requires multiple offenses be joined whenever they “are of the same or similar character, even if not part of a single scheme or plan” or “are based on the same conduct or on a series of acts either connected together or constituting parts of...